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The Rape Capital: The media menace or judicial reality?

Feminazi is the latest beloved term of the opinion wave that believes feminism to be a sheer redundant misandry in recent modern times. Trending on Twitter or loosely thrown around in professional conversations, it is making people turn their heads towards the other side of the gender-debate. And the term gives expression to every anguish and agony faced by men who have suffered at the hands of gender-partial policies and laws.

When ‘Game of Thrones’, the most popular T.V. series in the history of TV viewership, gave the world two phrases- ‘Valar Morghulis’ and ‘Valar Dohaeris’, they almost became the war cry of the anti-feminism brigades everywhere. The phrases meaning ‘all men must die’ and ‘all men must serve’ were projected as the real hidden feminist agenda. A complete subjugation of men and total control of matters and lives by women forms the crux of understanding of many concerned with suppression of men.

Men’s rights activism or MRA is no longer a western phenomenon. Its taking its roots strongly in our part of the world. There is an increased debate an awareness about harassment and misery faced by men in the society.

The degree of derogation that the word ‘Feminazi’ entails, the relevance or redundancy of feminism or the surge off insecure male chauvinists in a neo-patriarchy, in short the general gender-debate deserves a fully-drawn narrative and a separate write up. What we want to engage ourselves with right now is the menace of alarmingly increasing cases of abuse of laws initially brought into force for women empowerment. Section 375 of IPC is one such most misused law.

In january 2016 a judgement by an additional sessions judge in a special fast track court of Delhi was quoted and reported by various media houses and social media users. The judgment along with acquitting an accused in a rape case no 148 of sessions court of 2013 raised some essential issues plaguing Indian legal system in this context. Calling the accused a “Rape case survivor” judge said that, “His plight may also continue after his acquittal as his implication may have caused an uproar in society but his acquittal may not even be noticed. He would continue to suffer the stigma of being a rape case accused. He has remained in custody for a considerable period. It may not be possible to restore the dignity and honour of the accused nor compensate him for the humiliation, misery, distress and monetary loss.”

Adding to this, the judges also drew a much needed inference exclaiming that ” No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour and dignity of women. Laws for protection of women are being made which may be misused by a woman but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for the man.”

Journalists and social media community uses an ever-upgrading terminology referring to the crime of rape. Title given to the Indian capital as ‘the rape capital’ is one such title used widely internationally. The statistics of actual conviction versus the accusations, however paints a different picture.

In a case ending in acquittal of the two accused persons under section 354 and 37,… vs …, the senior metropolitan magistrate Gaurav Rao noted how not only the entire legal system suffers but also image of cities and countries are maligned because of false rape cases. He said “She tried to extort money from the alleged accused and maligned their image. Such allegations not only defame and shame a person but also let the world label the capital as rape capital. She set the entire state machinery into motion and tried to use the law for her benefit knowing full well that the allegations levelled by her were false”.

Courts have time and again indicated that personal monetary gain and revenge have been primary reasons for false allegations. Since, in such cases, a mere statement of a woman is considered as a proof enough to get a person arrested, this particular law makes itself very vulnerable for abuse. This rather in turn puts women and children’s security under jeopardy for person seeking revenge can take advantage of a woman’s needy condition or a child’s innocence for assaulting an enemy.

Acquitting a father in an alleged rape case against his daughter, and canceling conviction orders of Additional Sessions Judge, (Sanjay vs State on 28 July, 2016, Crl. A. no. 1059/2015), the Delhi high Court opined that, “In this case the mother of the Prosecutrix, driven by the feeling of revenge, has gone to the extent of falsely implicating her husband for the rape of their daughter, being completely ignorant of the shame she has brought to her entire family including herself, her daughter and her husband by her such derogatory, disgraceful, intolerable and unacceptable conduct. At the first blush of this case, it appeared to us that the father has really committed such a heinous offence with his own daughter, however a deep scrutiny of all the evidences taken together gives an altogether different picture.”

The court also quoted the Apex Court in Radhu vs. State of Madhya Pradesh reported in 2007 CriLJ 4704. “The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.”

It is true that in a case of rape or outraging the modesty of a woman, the statement of the Prosecutrix is considered as a prime evidence but only if the story remains consistent and is not embellished or exaggerated. If proven otherwise the defendant or the accused is usually given a benefit of doubt.

In the case of Tameezuddin @Tammu vs State (NCT off Delhi) (2009) 15 SCC 566, the Supreme Court stated that “It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.”

In order to fight fraudulent cases under section 376 and 354 the courts of India have always laid a huge emphasis on the evidence corroborating the story of the prosecution. Its always important for the prosecution to build a proper and strong narrative against the accused even if all that the accused has is his denial to offer.

The apex court of india in the case Narender Kumar (Appellant) vs State (NCT of Delhi) Respondent, Crl. A. no. 2066-67 of 2009 acquitted an earlier convicted person saying “However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part off the duty of the defense to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on it own legs an cannot take support from the weakness of the case of the defense.”

In a case against airing of a controversial documentary about Nirbhaya gang-rape case, a bench of justices BD Ahmed and Sanjeev Sachdeva came down heavily on the role of media in such cases. They said, “Media trials do tend to influence judges. Subconsciously a pressure is created and it does have an effect on the sentencing of the accused/ convict.” Speaking about the accused’s interview in the documentary they said “Whether he has shown remorse or not would be considered at the time of his sentencing.”Murther reprimanding the media the bench remarked that, “,”We agree that earlier media had a self imposed code of not reporting sub-judice matters, but now “media has thrown it (the code) to the winds”.

Considering the fact that rape is a heinous crime of the highest degree, such media trials create pressure on judges for convicting the accused so that it sets precedence for other criminals and society in general. Not only that it does create a bias in the minds of judges as remarked in the above quoted judgement. Such kind of irresponsible reporting not only becomes fatal to the honour of accused in case of a false allegation but also proves bad for prosecution. Statements given by prosecutrix or key witnesses to the media could be given without much thought or legal counseling which could be used by the defense.

The backbone of all legal procedures is that a person is considered innocent until he is proven guilty and convicted by a court of law after a proper trial. The law pertaining to rape cases however, going against this basic presumption, assumes prosecutrix as victim in the beginning while putting the accused under arrest based on the FIR before the investigation and trial begins.

After Nirbhaya case in December 2012 the sensitivity towards rape victims and the working of law was being questioned. The rape laws witnessed amendments as an aftermath. Many rape accused have had to face media trials and humiliation in the society. However, the experts believe that the stringent laws that are widely worded are prone to be misused. The percentage of acquittals in the rape cases remains very high.

The legal community has begun taking notice of false accusations and courts are beginning to issue advisories to fight for the truth no matter on whose side it lies.